1801608 (Refugee)

1801608 (Refugee) [2021] AATA 3975 (3 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1801608
COUNTRY OF REFERENCE:                   China
MEMBER:Rachel Da Costa
DATE:3 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 September 2021 at 9:42am
CATCHWORDS
REFUGEE – Protection visa – China –fear of harm from loan sharks – claims were very different from the claims made in protection visa application – inconsistent evidence –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of China, applied for the visa on 29 August 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Background
In her protection visa application form the applicant provided the following information. She was born on [date] in Dandong city, Liaoning province in China. She has a father, mother and brother in China. She also has a husband and daughter in China with whom she is in daily contact via phone and [mobile application]. From August 1997 to July 2015 she lived at [address deleted], Dandong city, Liaoning province. She completed 15 years of schooling, finishing in 1998 at [a] University where she studied [specified major]. She speaks, reads and writes Mandarin. From January 1999 to February 2005 she was an employee with general duties at [a company] which is a consulting business. From March 2005 to December 2009 she was an employee with general duties at [another company], Dandong city. From January 2010 to July 2015 she was the Manager, [company name deleted], Dandong city. From August 2015 to July 2017 she lived [in] Yunnan province in China. From August 2015 to July 2017, she worked as a [Occupation 1] at [a company] in Kunming city, Yunnan province. She was issued with a passport from the People’s Republic of China [in] 2014. In May 2015 she travelled to [Country 1] for a holiday. In November 2015 she travelled to [Country 2] for a holiday. In April 2017 she travelled to [Country 3] for a holiday. She arrived in Australia [in] July 2017 on a Visitor visa, travelling on her own passport.
Evidence before the Department
Protection visa application
In her protection visa application form the applicant makes the following claims:
·     On 3 March 2017 the applicant borrowed RMB 2 million from a loan shark.
·     [In] May 2017 she purchased 200,000 shares of [Company 1]. On 2 June 2017 the stock price of the group dropped significantly and she lost all of her capital.
·     With no money left she could not repay the loan. The loan shark started using all kinds of means including violence and insults to demand the repayment. She could not endure such devastation and humiliation so she fled to Australia
·     She could not pay back the loan. The loan shark contacted the local gang and started using all kinds of means including violence and insults to demand the repayment.
·     She sought help from the local police but they offered no protection. She heard from other people that the authorities collude with the loan sharks and act as their shield.
·     She could not move to another part of the country because she was kept under close watch by the local gang sent by the loan shark.
·     If she returns she will be taken away by the local gang and receive brutal treatment.
·     The local authorities cannot protect her because they don’t care and they collude with the local gang and loan sharks and act as their protective umbrella.
·     She is unable to relocate because the local gang will be monitoring her all the time until she pays back the money she owes. She would not be able to move anywhere.
The applicant was invited to attend an interview with a delegate of the Department on 2 January 2018 however she failed to attend.
The delegate’s decision
On 4 January 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied, based on the written material, that the applicant is at risk of being threatened and harmed by a loan shark or their associates or that they face harm of any kind for such a reason on return to China. The delegate was not satisfied that the applicant is a refugee or that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to China that there is a real risk that the applicant will suffer significant harm. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The review application
On 22 January 2018, the applicant lodged an application for review of the delegate’s decision with the Tribunal. The applicant provided a copy of the delegate’s decision with her application.
The hearing
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
The applicant appeared before the Tribunal on 1 September 2021 via telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Nationality
The applicant claims to be a citizen of China and provided to the Department a copy of her Chinese passport issued [in] 2014. The delegate was satisfied that the applicant was using her own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China. The Tribunal finds China is her receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
During the hearing, the applicant gave evidence that a person she calls [Ms A] helped her to fill out her protection visa application form. She gave [Ms A] the information and [Ms A] filled out the form. The applicant said she met [Ms A] at a dinner party with some friends not long after she arrived in Australia. She thinks [Ms A] is a housewife. The applicant gave evidence that the information she put in her form is true and correct that there were no changes that she wanted to make.
During the hearing, the Tribunal discussed with the applicant her background, her family, her education and employment history, where she lived in China, her reasons for leaving China and why she fears returning to China. The Tribunal has concerns about the truthfulness of the applicant’s evidence in relation to claimed events in China and did not find her to be a credible witness. The applicant raised a number of new claims in the hearing and the Tribunal found aspects of her evidence to be inconsistent, vague and unsatisfactory.
The Tribunal’s concerns are discussed below.
First, and most significantly, the claims made by the applicant during the Tribunal hearing about what happened to her in China are significantly different to the written claims in her protection visa application.
The applicant’s written claims in her protection visa application are set out in paragraph 4 above. In summary, she claims that in March 2017 she borrowed RMB 2 million from a loan shark and used this money to purchase 200,000 shares in the [Company 1] in May 2017. On 2 June 2017, the share price dropped significantly and she lost all her money. She could not repay the loan and the loan shark contacted a local gang who used violence and insults to demand repayment. She sought help from the police who offered no protection. She fled to Australia due to her fear of being brutally treated by the loan shark and the gang.
In the Tribunal hearing, the applicant gave evidence that her mother’s sister was working for a securities company. She told the applicant about a securities product she had access to which would guarantee a good return. The applicant decided to buy some. She does not know specifically what the product was but she trusted her mother’s sister. It turned out that the product was a scam and she lost all her money. Her mother’s sister lost money too. This happened 5 or 6 years ago. The applicant could not remember specifically which year. It was a long time ago.
To purchase the securities she borrowed RMB 500,000 from a loan shark. She did not discuss her plan to borrow money from a loan shark with anyone, such as her family, beforehand. She was introduced to the loan shark by a friend who used to borrow money from that person. The term of the loan contract was two months. If she was not able to repay the money at that time the loan shark would take her house. She found out that she had been tricked after about one month. When she found out she had been tricked she was very unhappy and started drinking with her friends. When her husband found out what had happened he hit her. The loan shark could not get her house because it is in her husband’s name. The loan shark had not checked whether the house was in the applicant’s name because they trusted the applicant’s friend who introduced them.
When the repayment became due she asked the loan shark for an extension. They gave her one week. She could not get the money and so she asked her friend to talk to the loan shark and she got an extension of one month. She didn’t know what to do. She started to hide, sometimes at friends’ places and sometimes at hotels. The loan shark people came to her home and asked for money. They smashed the door of her home but nothing else. She hid for almost half a year. She had some savings and support from friends. They kept calling her to threaten her. She changed her number and didn’t answer their calls. The situation finished when the loan shark stopped coming after the applicant and went after her friend who had introduced her to the loan shark. The loan shark went after that person because the loan shark had trusted them and they had introduced the applicant.
During this time her husband and daughter were doing their own things. They did not have any problem with the loan shark. The loan shark was just coming after the applicant.
She decided to leave China just before she applied for the Tourist visa. She found an immigration agency on the internet to organise her visa. During the time between the visa being granted and her leaving China the applicant was hiding at a friend’s place.
The Tribunal put to the applicant that her claims were very different from the claims made in her protection visa application, including various new claims, and that this raised serious concerns for the Tribunal about the truthfulness of her evidence and whether the claims she made about what happened to her in China and why she fears returning to China are genuine. The Tribunal asked the applicant whether she would like to comment on this and she replied ‘no’. The Tribunal then reminded the applicant of the written claims she had made in her protection visa application and asked her whether she would like to comment on why they were so different. The applicant responded that she could not remember what she put in the application. The Tribunal reminded the applicant that she had previously given evidence that the information contained in her application was given by her and it was true. The applicant responded ‘yes’. The Tribunal asked the applicant again whether she would like to comment on why her evidence was so different. The applicant responded that she had nothing else to say. The Tribunal asked the applicant whether she had anything else to say about what happened to her in China and she said there was not. The Tribunal asked the applicant whether she had ever had any other problems in China that she wanted to tell the Tribunal about and she said she had not.
The applicant’s responses to the Tribunal’s concerns raise serious doubts for the Tribunal about the truthfulness of the claims made in the applicant’s protection visa application and her claims made in the Tribunal hearing. When the Tribunal put to the applicant its concerns and invited her to respond she offered no explanation other than that she could not remember what she put in her application. The Tribunal is not satisfied by this response and considers that the applicant’s inability or unwillingness to even attempt to account for the large discrepancies in her claims suggests that her claims are fabricated.
Secondly, there were other inconsistencies in the information provided by the applicant in her protection visa application and the evidence she gave to the Tribunal.
In her protection visa application, the applicant stated that she lived in Dandong city, Liaoning province from 1977 to 2015 and lived in Kunming city, Yunnan province from 2015 to 2017. In her evidence to the Tribunal, the applicant stated that she had always lived in Dandong city and she had been to other places to visit people but just for short stays. She had never lived anywhere else. The Tribunal asked the applicant whether she had lived in Yunnan province from 2015 to 2017 and she said she had not.
In her protection visa application, the applicant stated that prior to coming to Australia, from August 2015 to July 2017 she worked as a [Occupation 1] for [a] company in Kunming city. In the Tribunal hearing, she gave evidence that prior to coming to Australia she worked in a [workplace] in Dandong city. She worked there for five years and prior to that she was at home taking care of her child. The Tribunal asked the applicant whether she had ever worked as a [Occupation 1] for [a] company in Kunming and she said she had not.
The Tribunal put to the applicant that she had said the information in her protection visa application was true, and now she was saying some of it was not true, which raised a concern for the Tribunal about whether it could believe the information she had provided. The applicant responded that she had nothing to say.
These inconsistencies in the information provided by the applicant further reinforce the Tribunal’s concerns about the applicant’s credibility and the genuineness of her claims.
In light of the above concerns, having considered all of the applicant’s claims and evidence, the Tribunal is not satisfied that the applicant is a witness of truth.
The Tribunal accepts that the applicant was born in Dandong city, Liaoning province in China and that she lived there until she travelled to Australia. The Tribunal accepts that the applicant has a father, brother, husband and daughter who still live in Dandong city (she gave evidence that her mother was deceased).
The Tribunal does not accept that the applicant borrowed money from a loan shark or any of her claims which flow from that.
The Tribunal does not accept that in March 2017 the applicant borrowed RMB 2 million from a loan shark. The Tribunal does not accept that she used this money to purchase 200,000 shares in the [Company 1] in May 2017. The Tribunal does not accept that on 2 June 2017 the share price dropped significantly and she lost all her money. The Tribunal does not accept that she could not repay the loan. The Tribunal does not accept that a local gang used violence and insults to demand repayment on behalf of the loan shark. The Tribunal does not accept that the applicant sought help from the police. The Tribunal does not accept that she was kept under close watch by the local gang.

The Tribunal does not accept that 5 or 6 years ago her mother’s sister encouraged her to invest in a securities product. The Tribunal does not accept that this product turned out to be a scam and she lost all her money. The Tribunal does not accept that to purchase the securities she borrowed RMB 500,000 from a loan shark. The Tribunal does not accept that she was introduced to the loan shark by a friend who used to borrow money from that person. The Tribunal does not accept that her house was security for the loan. The Tribunal does not accept that when her husband found out what had happened he hit her. The Tribunal does not accept that when she could not repay the money to the loan shark she was granted an extension for repayment. The Tribunal does not accept that when she still could not repay the money she went into hiding for almost half a year. The Tribunal does not accept that the loan shark people came to her home and asked for money or that they smashed the door of her home or did anything else. The Tribunal does not accept that the loan shark people kept calling her to threaten her or that she changed her number and didn’t answer their calls. The Tribunal does not accept that the loan shark stopped coming after the applicant and went after her friend who had introduced her to the loan shark. The Tribunal does not accept that during the time between her Tourist visa being granted and her leaving China, the applicant was hiding at a friend’s place.
The Tribunal does not accept that the applicant fled to Australia due to her fear of being brutally treated by the loan shark or the local gang, or anyone else, or that she fears returning to China for the reasons claimed.
Does the applicant meet the refugee criterion?
In the Tribunal hearing, the applicant claimed that she fears returning to China because she owes money to some people and they keep calling her to threaten her and also her husband hit her. She fears that if she is not able to repay the money the loan shark people will hit her and she will be hospitalised and it will be serious. She doesn’t know particularly who will harm her if she returns to China because it’s a debt collection company and she doesn’t know who they will send. The police can’t protect her because she has no idea when they will come to harm her and the police can’t guard her all the time. In light of the Tribunal’s findings above that the applicant did not borrow money from a loan shark and that she did not lose that money and that she was not threatened or harmed as a result, the Tribunal does not accept these claims. Therefore, the Tribunal finds that the applicant does not face a real chance of serious harm arising from these circumstances.
The Tribunal has considered whether the applicant’s claim that her husband hit her constitutes a separate claim of harm, however based on the applicant’s evidence the Tribunal is not satisfied on this point. The applicant gave evidence that she is married and that her husband is an alcoholic and she doesn’t want to live with him anymore. The Tribunal is prepared, with some reservation, to accept this evidence. The context in which she mentioned that her husband hit her was in connection with her claims relating to not being able to repay the loan shark, which for the reasons explained above, the Tribunal does not accept. Despite being given several opportunities, the applicant did not claim that fear of her husband was one of the reasons why she feared returning to China. The fears she expressed were in relation to being harmed by the loan shark. The Tribunal asked the applicant where she would go if she returned to China and she said she would go and live with an old friend in Qinhuangdao city in Hebei province. This is consistent with the applicant’s evidence that she doesn’t want to live with her husband anymore. The Tribunal gave the applicant several opportunities to give evidence about her situation and what might happen to her if she returned to China and she did not provide any further information. Accordingly, the Tribunal is not satisfied that the applicant fears harm from her husband if she returned to China or that she faces a real chance of serious harm arising from these circumstances.
Taking into account the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the foreseeable future that she faces a real chance of serious harm because of her claimed involvement with a loan shark or for any other reason set out in s 5J(1)(a) of the Act.
Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant meet the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of her claimed involvement with a loan shark or for any other reason.
[1] MIAC v SZQRB [2013] FCAFC 33
Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachel Da Costa
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 3975

3 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction